Lessons from the story of Aretha Franklin’s will

The preparation of the 2010 document involved a lawyer and the document had been notarised, whereas the 2014 document was simply signed and dated by Ms Franklin and was located behind a cushion on her sofa after she died. Despite the lack of notarisation and informality of the 2014 document, nonetheless, a jury of 6 people found it to be a valid will for the purpose of Michigan law. The estate has been valued at over USD 4 million.

In order for a will to be valid in England and Wales, the following is necessary:

1. The person making the will must have testamentary capacity (i.e. be over 18 years of age and of sound mind);
2. The person making the will must do so voluntarily, without undue influence and must know what the will says;
3. The will must be in writing; and
4. The will must be signed by the person making the will in the presence of two witnesses; and then it must be signed by those two witnesses, in the presence of the person making the will, after they have signed.

A will does not need to be dated in order to be valid, and the involvement of lawyers is not a requirement. However, in our experience, handwritten and homemade wills tend to give rise to more issues than those prepared by professionals.

In the Franklin case, it does not appear to have been suggested that the handwritten documents were created by anyone other than Franklin herself, but this is often an allegation that comes hand in hand with the provision of handwritten documents after the deceased’s death (invariably by the individual set to benefit from the wishes set out in that document). If it turns out that a will has been forged or has been obtained by fraud, it will be declared invalid. A will might have been forged in its entirety, or it could simply be that the signature of the person who made the will has been forged. An example of a fraudulent document might be where the testator has signed the document but does not know it is a will and believes it to be something else.

Will forgery and fraud are criminal offences, as well as civil offences. In civil cases, the claimant must convince the court on the balance of probabilities that it is more likely than not that forgery or fraud has taken place (that is, more than 50% likely). In criminal cases the standard of proof is higher; the court must be satisfied beyond reasonable doubt that forgery or fraud has taken place. Whether civil or criminal proceedings are contemplated (or both), the evidence relied on by a claimant will often be the same, and expert evidence will most likely be a central part of any case. Obtaining the opinion of an independent forensic document examination expert early on in a case is crucial to determining whether there is evidence to support a claim that a will is invalid due to fraud or forgery.

Homemade wills are often badly drafted, contain mistakes, or are wrongly executed. Their existence also makes comparable false documents less obvious and more difficult to disprove. Consequently, it is strongly recommended that individuals instruct qualified professionals to prepare their wills to avoid some of the more obvious drafting pit falls and ensure correct execution as well as a comprehensive record of their wishes being held on the professional’s file, which may later be relied on as evidence in support of the will being valid.

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